Child Day Care Compliance

Child day care companies on the Front Range of Colorado have been the target of recent audits by the U.S. Department of Labor: Wage and Hour Division (WHD). In 2012 and 2013 the WHD in Colorado investigated more child day care companies than any other type of business. This trend is continuing in 2014 and day care companies should be prepared for an audit of their employment practices under the Fair Labor Standards Act (FLSA).

The WHD has been targeting day care employers based on the premise that they are not compensating employees for time spent in training. Many child day care companies mistakenly think that they do not have to pay for certain training time required by State of Colorado child care licensing requirements but the WHD has taken the position that the time must be paid and included in all hours worked for the week.

All day care companies in Colorado have to abide by the State of Colorado Minimum Wage Order and the federal regulations found in the FLSA.

The FLSA states that time spent in training must be paid for unless it is voluntary, outside of regular working hours, not directly related to the employee’s job, and does not include any productive work. Many day care companies think that the training time required by the State of Colorado is not compensable since it’s recorded on an individual basis. They misconstrue the state regulations as requiring it of the individual employee when in fact it’s required of the day care center. The State of Colorado’s “Rules Regulating Child Care Centers”, which are essentially licensing requirements for a day care center, specifically state in 7.702.43(E):

“The center must have a staff development plan that includes a minimum of fifteen (15) clock hours of training each year for all staff. The training must relate to one or more of the following areas-child growth and development, healthy and safe environment, developmentally appropriate practices, guidance, family relationships, cultural and individual diversity, and professionalism.”

The training time is a requirement of the day care center, not the individual employee. If the day care center follows these regulations and requires its employees to take 15 hours of training per year then the training is not voluntary and it is directly related to the employee’s job. Therefore, the training time must be paid. The hours of training must be included in the employee’s total hours worked each week when the center is determining whether or not the employee worked overtime. If this time hasn’t been paid, the WHD will assess back wages and liquidated damages whenever the unpaid time took an employee below minimum wage per hour or cut into their overtime pay.

Other common violations found at child day care centers include:

Unpaid breaks: State of Colorado regulations state that employees are entitled to a 10 minute break for every four hours of work. Federal law states that all breaks of 20 minutes or less must be paid.

Short Lunches: State of Colorado regulations state that employees are entitled to a 30 minute meal break for every five hours of work. If the lunch break is not a full 30 minutes and free from all work duty then the time must be paid.

Pre-shift/Post-shift time: If day care employees arrive early or stay late, that time must be included in their total hours. It is common for day care employees to work prior to clocking in for the day or work after clocking out for the day.

Background checks and fingerprinting: Many day care companies require employees to pay for the required background check and fingerprinting. If the employee pays for this out of pocket, or the employer deducts it from their paycheck, it must not result in the employee being paid less than minimum wage per hour in their first week of work.

Uniforms: State of Colorado regulations do not allow deductions to be made for uniforms.

Misclassifying Preschool Teachers: The FLSA includes an exemption from overtime and minimum wage for teachers. If day care companies are claiming the exemption for any of their preschool teachers they should be prepared to prove that those teachers are spending the majority of their time teaching and instructing children. Examples of this would be a curriculum, lesson plans, etc. If the preschool teacher’s primary duty is caring for the physical needs of the children then the exemption will not be allowed.

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The Labor Brain Inc. is not a law firm and its employees do not practice law or provide legal services. The information provided on our website, in email correspondence with representatives of The Labor Brain, and at outreach events is for informational and educational purposes only. The information provided is not a substitute for the advice of an attorney.